Official Plan amendments affect local cannabis producers Redecan, CannTrust and Woodstock Biomed
To paraphrase Robert Duvall’s memorable line from Apocalypse Now, “I love no smell of cannabis in the morning, it smells like…victory.”
Tim Nohara might want to take a bow. The president and CEO of Accipiter Radar Technologies on Highway 20, and also the Chair of Pelham’s Cannabis Control Committee (CCC) since its inception in 2019, and the Town of Pelham, have beaten local pot producers in court.
On August 23, the Ontario Land Tribunal (OLT) delivered its decision related to appeals by cannabis producers CannTrust, Redecan, and Woodstock Biomed (a subsidiary of Leviathan Cannabis Group), which all have operations in Pelham.
The cannabis producers had railed against Pelham’s Cannabis Official Plan Amendment (OPA) and Zoning Bylaw Amendment (ZBA), which Town Council approved on July 13, 2020.
The OPA sought to establish permissions for indoor cannabis and industrial hemp cultivation, subject to a zoning bylaw amendment, and to establish approval criteria. The OPA states that new cannabis facilities must either avoid adverse effects or appropriately mitigate them, determined on a case-by-case basis through peer-reviewed odour and light studies and contingency mitigation plans, in concert with site plan control.
The ZBA added two specific agricultural-cannabis and general-industrial-cannabis zones to regulate newly approved indoor and outdoor cannabis facilities, requiring a 300-metre setback for outdoor uses.
An Odorous Industries Nuisance Bylaw (OINBL), approved and amended by Town Council in 2020, has been appealed to the Ontario Superior court by the cannabis producers, with hearings not scheduled until 2023.
The OLT ruled that after “careful consideration, the proposed settlement between the Town and Redecan conforms to the Town’s OP and OPA, conforms to the Region’s OP, represents good planning, and is in the public interest.” The Tribunal dismissed appeals against Pelham’s OPA by Woodstock BioMed.
“Yeah, I’m very satisfied with the outcome,” Nohara told the Voice. “We knew it would be a long and challenging process from the start. We had hoped this is where it would end up. I’m certainly grateful to my team in achieving this result.”
Nohara noted that there is still some work to be done by the next council, but that, “we now have a good plan to manage this issue going forward. Our intention was to develop instruments that would get tested at a tribunal or court, so that the proverbial goalposts would not continue to shift. So now we have firm goalposts that we have pioneered, and I think every municipality in Ontario can take advantage of these.”
The CCC (made up of Nohara, Carla Baxter, Louis Damm, Bill Heska, Jim Jeffs, John Langendoen, James Steele, Bob Hildebrandt, with staff liaison Barb Wiens) was praised by Nohara for its countless hours of work that contributed to the positive result from the OLT’s decision. In his summary to Town Council, Nohara also acknowledged the contributions of Pelham staffers David Cribbs, Bob Lymburner, Jennifer Stirton, Shannon Larocque, Jodi Legros, and Craig Genesse, as well as late Ward 1 Councillor Mike Ciolfi. He further acknowledged the full support of Town Council, which provided outside professional experts including legal (Aird & Berlis LLP: Laura Dean, John Mascarin, and Patrick Harrington), planning (Meridian Planning Consultants: Nick McDonald), and odour (PG Compliance Management Inc: Phil Girard).
“It has been a pleasure working with such a committed, focused, intelligent, and diverse group of individuals, where occasional disagreements, and the openness to debate them, led to better work product. I thank them for their efforts, I have learned so much from them, and I am honored to have had a part in leading this team to fulfil the CCC’s mandate,” wrote Nohara.
Barb Wiens, Pelham’s Director of Community Planning and Development, was pleased the Tribunal approved minutes of settlement that were agreed to between the Town’s legal counsel and Redecan, and approved the ZBA.
“The next step is for the producer to submit a site plan, an odour management plan, and an odour management contingency plan. Once we have those three things, submitted to our satisfaction, then they will get their site specific zoning approval, which will permit a future office and warehouse use on their site,” said Wiens.
Asked if the cannabis producers might seek additional court appeals, Nohara responded, “My understanding is that there is no appeal process, and that the Tribunal’s decision is final.”
He is not expecting any further pushback, and stressed that “there's now a great opportunity for the Town and the cannabis producers to really collaborate together and manage the odour issue.”
Wiens agreed with Nohara’s assessment that the OLT’s decision is irrevocable.
“There could be an appeal of the Tribunal’s decision if an error in law was made, but typically the decision is final. It's only in very rare circumstances that a Tribunal decision could be successfully overturned.”
A greenhouse light mitigation bylaw for Pelham is in the works, said Wiens.
“In Tim’s recent presentation to Council, he recommended that Pelham consider implementing the model in play in Leamington, Ontario, where they passed a light bylaw over a year ago, and it was appealed by the local greenhouse industry. Leamington negotiated some kind of resolution that was accepted, and as a result passed a new bylaw in June, to replace the previous one. So that's the model that Tim is recommending to council.”
For complete information on cannabis bylaws in Pelham, go to www.pelham.ca/en/town-hall/cannabis.aspx.
